Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-12-18
THE HIGHER COURTS.
Synopses OF Decisions Rendered st the
Present Tyler Sitting of the
Higher Courts OF Texas.

Higher Courts Of Texas.
Cases Reversed and kemanded, Dismiss
Reformed and MISUNDERSTANDING
in Long Delayed Cases
| Supreme Court.
| Correspondence of the Gazette
TYLER. TEX, Dec. 13-Harvey ct al.
VS.. N. B. EdeDs; appeal from Ellis.
Trespass to try title. 1. After the intro
ductlon in evidence of the deed Of trust
the court did not err in permitting PLAIN
! t.f to introduce in evidence the record of
the judgment there referred to, for the
purpose Of identifying the land so de-
scribed as the same lsud sued
for in his action. .. The deed
of assignment being without the
IN the power OF the plSlnEif TO produce
| it, and secondary evidence Of its contents
was therefore admissible. 8. Though
the laws Of the state CT New York may be
| framed to meet such e case, and though
they may direct the mode IN which TIE
trust shall be administered, and the pro-
ceeds applied upon the debts, this
can make no difference in j
controversy in which the rights
of creditors are not involved.
f. Though the deed of assignment was
msde in the state Of New York, it was
sufficient to convey the title OF assignors
to lands lying IN this state. ). II
g conveyance provided for recon
veyanCe upon the payment of sum Of
| money, and It appears that the payment
is to discharge an existing debt, it is
mortgage. But if it be optional with the
grantor, whether he pay Or not, then it is
only conditional sale. The crucial test
is, whether or not there is debt to be Sc
cured. 6. The lien aCq aired by the rendition
of Judgment under the set OF November
Q, 1886, is lost, unless diligence be used
to enforce it. A failure to sue out exc
cution from year to year shows q want Of
diligence In the absence Of the proof of
some facts to excuse the neglect
7. Where the relevancy of testimony de-
ponds upon the existence of other facts
and no evidence is offered TO estao dish
such facts, and no statements made that
counsel expects to prove them, il is not
error to exclude the testimony. No error.
Affirmed. Game, j.
Baylor County vs.. j. T. Craig; appeal
from Clay. l. An assignment requiring
releases mad1 by member of firm in
the firms name, and by himself individu-
ally, but not Joined in by his co-partner,
is invalid SO to creditors. 2. Where q
merchant doing business in his own
name, had silent partner, and made al
assignment, coGcedipg that the deed
passed the partnership property, and
that the silent partner had no
effects, still the assignment
could not stand. 3. As general rule
the estoppel created by false represen-
tation scted upon, is commensurate with
the thing represented, and operates to put
the party entitled TO the benz ii. of the es-
topped in the same position IS if the
thing represented we're true. The as
signment was invalid, ard the judgment
of the court below cannot stand. Re-
versed and remanded for appellant.
Gaines, j.
Mary Stephens eft 81 VS. J. l.. Matthew's;
appeal from Van Zapdt. Suit to fore
close vendors lien note on land, or in
the alternative judgment for the land.
l. The assignee of a note secured by lien
may enforce the lien, but the holder
OF q note given for the purchase of
land, and secured by an express lien, he
not being the vendor, has not any title
whatever to the land. 2. The fact that
the note is barred by the statute of lmi-
tatiop, cannot confer upon such holder
right he would not have if the note
IVES not barred. >. The indorsee or as
signee Of such 8 note, when barred
by Limitation, has neither right in or to
the land for which it was given, nor
right TO collect the note if its maker in
III Of tot no
vendor Of land sold on 6 credit, when
retain the legal title and he
msy enforce payment OF the
purchase money by sale Of the land; or
in the absence of equitable considerations
for It, he may cancel the eXecutOry con-
tract Of sale; but en indorser or assignee
of one or all the purchase money notes
has no right to cancel the con rscs of
sale, or to recover the land IN default Of
payment of the purchase money. His sole
right is to have the land sold and its pro-
ceeds applied to the satisfaction Of the
purchase money notes held by him. Re-
versed and remanded. Stsyton, j.
Archibald ct al. vs.. Jacobs ct al; ap-
peal from Wichita. l. Abandonment Of
property actually homestead csnnot be
accomplished by mere intention; there
must be q discontinuance CT the use,
coupled with an intention not again to
use as home, to constitute abandon
ment; snd without an abandonment of
an existing homestead, no right can exist
to fix that character to smother
property, unless it be by wey OF
addition to the existing homestead.
When place of,business in fact exists,
mere intention coupled with preparation
to use another, the unsuitableness OF
that in use, or its insecurity can not
make the exemption extend to property !
never used as place of business. R.
versed and Temsnded. SssytJn,J j.
Gulf, Colorado and Santa Fe Railway
Company vs.. Calvin P Fox; appeal from
McLennan county. Opinion on motion
for rehe.Iing. 1t is cOptended inst il |
there was error in oVerrulrg the excep |
tion to SO much Of petition as set up the
faulty copstru ton Of defendants plat
form, this error Was calculated to preju |
dice The rights of defendant and
Should have worked reversal
of tie judgment The phys
ical facts are stated in the petit ion, and it
is averred that they make the platform |
DANGEROUS to passengers entering the |
cars and, although we msy not say that !
these facts es a matter of law show q !
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